# FILED
January 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1998 SESSION

GARY (JAKE) HARRIS , ) ) C.C.A. No. 03C01-9803-CR-00085 Appellant, ) ) Unicoi County v. ) ) Honorable Lynn W . Brown, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Gary (Jake) Harr

is, pro se John Knox Walkup West Tennessee High Security Facil ity Attorney General & Repor ter P. O. Box 1050 425 Fifth Avenue, North Henning, TN 38041 Nashville, TN 37243-0493 Todd R. Kelley Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601 Kent W. Garland Assistant District A

ttorney General Unicoi County Courthouse Erwin, TN 37650
OPINION FILED: ____________________________

___ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N
The appellant, Gary Harris, re ferred herein as the petitioner, appeals as of right from the summary d ismissal of his pe tition f or post-c onviction relief by t he Unicoi County Criminal Court. The trial court e ntered an order dismissing the petition for post-conviction reliefon the basis that the petition,taken as a whole, did not s tate a colorable claim for post-conviction relief. In his pro se appeal, the petit ioner pre sents six is sues for review:

1. Whether the tr ial co urt erred in dismissin g the peti tioner’s post-conviction petition without ap pointmen t of counsel to add and/or amend the post-convic t ion petition. 2. Whether the petitioner suffered from inef fe cti ve assistance of counsel. 3. Whet h er

the evidence used by the prosecution was sufficientto co nvict the petitioner of the crime of attempted murder first degree. 4. Whether the trial court erred i n handing down a sente nce which was exces sive and in violati on of the law. 5. Whether the trial court err ed in allowing prejudi cial information into the trial that had no probative value and in fact had absolutely nothing to do with the crim in al proceed ings broug ht befo re the jur y. 6. Whether the trial court erred i n n ot allowing a witness forthe defe nse to present testimony in v iolation of the petitioner’s constitutional rights.
After a review

of the entire record, briefs of al l parties, and the applicabl e law, the trial court’s judgment

is affirmed.

BACKGROUND

The facts at a jury trial

revealed in November, 1992, the victim, the petitioner, and
a co-defendant, Johnny W ayne Harris, were at a party. The petitioner and co-defendant
are brothers and the victi m is their cousin. The men go t into a sho uting mat ch at the party. When the victim attempted to leav e the party, the petitioner and the co-defendant followed him outside where the co-defendant shot him in the area of the groin, hip , and frontthigh. The victim was found several hours later in the street. He almost bled to death. As a result3

of the trial, the

jury found the petitioner g uilty of aiding and abetti ng the attempted murder first degree of the victi m.

On direct appeal, the

petitioner presentedtwo appellate issues: the evidence was not sufficient to support his conviction and the trial c ourt erre d in impos ing an exce ssive sentence. This Court, in State v. Johnny Wayne Harris a nd Ga ry L. (Jake) Harri s, No. 03C01-9507-CC-00202, 1996 LEXIS 4 21 (Tenn. Cri m. App., Knoxville, July 19, 1996), per. app. denied (Tenn. 1996), affirmed the trial cour t’s judgment.

On December 12, 1996, the petitioner filed a petition for post-convic tion relief allegingas grounds for relief: (1) the evidence was not

sufficient to support a convi ction of aiding and abetting firs t degree murder; (2) pr

osecutorial misconduct on the part ofthe Dist rict Attorney General; and (3) judicial misconduct for the arbitrary, capric ious, a n d uncaring disregard by the trial court. The petitioner requested appointment of counsel. On August 12, 1997, the post-conviction court entered a prelim inary ord er dismissing the petition on the basis the petition did not state a colorable claim for relief.

On September 22, 1997, the petitioner filed a motion to reconsider

in response to the post-conviction court’s order o f dismissal. In the motion to r econsider, the petitioner enlarged on his claim for relief. The petitioner alleged that he raised inef fectiveness of his counsel as one of his groundsfor relief. Th e motion also co ntained some vague wordage regardingthe testimony of defense witnesses being guaranteed by the Sixth Amendment. Again, the petitioner r equ ested appointment of counsel to assis t him in amending the petition. On December 2, 1997, the post-conv iction court entered an order denying the
m otion to reconsider on the basis the motion and petition did not sta te a colorable clai m for post-conviction rel ief.4 LEGAL ANALYSIS

Since the p etitione r contends the post-convi ction court erred in dis missing the petition without a hearing and ap pointment of counsel and t he state disagrees, we will resolve which par

ty is correct.

The new Post-Conviction Procedure Act governs this petiti on and all petitions filed afterMay 10, 1995. Tenn. Code Ann. § 40- 30-201, et seq . Onc e a petition for postconviction reliefhas been filed, the trial court must examine the petition, together with all files, records, transcripts , and correspondence relating to the j udgme nt under attack. Tenn. Code Ann. § 4 0-30-20 6(a). In the same statute, subs ection (d) sets out the requirements as to what the petition must contain:
The petition must contain a clear and specific statement of all groundsupon which relief is s ought, including full di sclosure of the f ac tual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. Failure to stat e a fa ctual basis for the grounds alleged shall result in im medi ate dismissal of the petition. If, however, the petition was filed pro se , the judge may enter an order stating that the petitioner must file an amended petition that complies with this section within fifteen (15) days or the peti tion will be dismissed. Tenn. Code Ann. § 40-30-206(d).

From a careful reading of the petition for post
- conviction relief filed on December 12, 1996 in this record, the petition er did not make a sp ecific cl aim of th e denial o f effe ctive assistance of counsel. Nor did the petitioner allege any facts

of ineffective assistance of counsel which

would s upport r

elief. In August, 1997, the post-conv iction court was jus

tified in dismissing the petitio n for post-conviction r elief based upon the allegations in the record. The petitioner’s allegati on of insufficientevidence to support his conviction for aiding and abetting attempt ed mu rder first degree has been p reviously determine d. See State v. Johnny Wayne Harris and Gary L. (J ake) Harris, No. 03C01-9507-CC-00202, supra. An issue has been previously determi ned “if a court of competent jurisdiction has ruled on the1 It is only on appeal in his b rief tha t the petitioner sets forth a factual claim of

ineffective assistance of counsel. 5 merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-206(h). As to the allegations of prosecutor

ial miscond uct and judi cial mi sco nduct, these matters have been w aived. The petitioner

must rebut the presumption that claims ha ve been either waived or previously determined. Tenn. Code Ann. § 40-30-204(e). The presumption of waiver ex ists as follows: A g round fo r relief is waived if th e petitio ner perso nally o r

through an attorney failed to present it for determination in any proceeding before a cour t of comp etent jurisdiction in which the ground could have been presented unless: (1) The claim for relief is based upon a constitutional right not recognizedas existing at the time of trial if either the federal or

state constitution requi res retroactive applicati on of that right; or (2) The failure topresent the groundwas the result of state action in violation of the state or feder al constitution. Tenn. Code Ann. § 40-30-206(g).

We find the post-conviction cour t was justifiedin summarily dismiss ing the petition for post-conviction as of Aug ust, 1997.

In the motion to reconsider, the peti tioner alleged for the

first time deficiency in his trial counsel’s representation.However, the petitioner failed to set forth any specific facts
or allega tions i n suppor

t thereo f. 1 The petitioner has failed to comply with therequirement of the Tennessee Post-Convictio n Procedure Act. Tenn. Code Ann. § 40-30-206. We do not find the post-conviction cour t abused its discretion i n denying the motion to rec onsider or in refusing to appoint co unsel.6 The post-conviction court ’s judgment is affirmed.

________________________________________ L. T. LAFFERTY, SENIOR JU DGE

CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JAMES CURWOOD WITT, JR., JUDGE